Strange bedfellows emerge in HB2 ‘repeal’
An admittedly imperfect compromise that could end the tempest of controversy surrounding North Carolina’s HB2 has been reached, but not everybody’s seeing rainbows after the storm.
Although the “repeal” may be satisfactory to moderates on both sides of the aisle, groups on the left say it doesn’t go far enough while groups on the right say it goes too far, making strange bedfellows out of LGBTQ groups and religious ultraconservatives.
“I voted not to repeal HB2 because it was a better bill then HB142,” said Rep. Michele Presnell, R-Burnsville. “I told my constituents I would vote no.”
The bill passed the House 70 to 48 after passing the Senate 32 to 16, and neither chamber voted strictly along party lines; in the house, 15 Democrats voted no, along with 33 Republicans like Presnell.
Who uses what bathroom suddenly became a multi-billion dollar economic issue not long after the Charlotte City Council passed an ordinance prohibiting discrimination in public facilities.
While not controversial on its face, that ordinance’s inclusion of gender identity — those who self-identify as a gender different than that listed on their birth certificate — as a protected class prompted the North Carolina General Assembly to rush back into special session a month after the Charlotte ordinance and pass the controversial HB2.
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Made law in just under 12 hours on March 23, 2016, the Public Facilities Privacy & Security Act famously dictated that persons must use the bathroom in accordance with the sex on their birth certificates, and infamously resulted in a wide-ranging economic boycott that cost North Carolina both jobs and tourists.
That December, the Charlotte City Council repealed the provocative ordinance, signaling that a compromise brokered by the North Carolina Restaurant and Lodging Association might soon end with the legislature repealing HB2.
That compromise finally materialized on March 30, in the form of HB142, which repeals HB2 in its entirety and may or may not have to do with the NCAA’s March 28 threat to remove future tournaments from basketball-crazy N.C. until at least 2022 were it not.
The catch is that the new law also grants to the legislature the sole regulatory power over bathroom, changing room and shower access while simultaneously banning non-discrimination ordinances by local governments until 2020.
It also leaves open the potential for discrimination against members of the LGBTQ community, meaning nothing’s really changed for them.
Local reaction
Like Presnell, Western North Carolina’s other legislators — Rep. Kevin Corbin, R-Franklin, Rep. Mike Clampitt, R-Bryson City, and Sen. Jim Davis, R-Franklin — also voted on the repeal of HB2.
Unlike Presnell, they all voted for the repeal — but for different reasons.
Corbin said that HB142 is not so much a “repeal” of HB2 as it is a reset that reverts bathroom policies to what they were before Charlotte “interfered” by passing its non-discrimination ordinance.
A news release put out by Clampitt said he voted for the bill because it strengthens state law on “shower and locker room protections” and offers “an outright preemption on regulation of access of multi-occupant facilities.”
Davis was more circumspect in his analysis; he said he was happy that the repeal, however inadequate some may feel it is, has a bright side.
“This basically resets things to as they were, which will give us a little bit of time to figure out where we are going,” he said.
As to where it’s going, Davis thinks final resolution of the issue may be years off.
“I think it’ll end up in the Supreme Court,” he said. “It will probably center on the issue of defining gender, and defining gender identity. That’s really the only grey area here.”
Moving forward, Davis was adamant that he hoped everyone could be accommodated with a solution that doesn’t leave anyone feeling violated.
“What people do in the privacy of their own home is not our concern, but accommodating those people in public facilities is,” he said. “Even though it's a very small fraction of our population, my position has always been that I will not compromise the privacy rights of anybody.”
